SHIV KUMAR SHARMA, J. - (1.) BY this writ petition the petitioner seeks to quash the judgment dated April 9, 2002 of the Central Administrative Tribunal, Jaipur Bench (in short CAT Jaipur) with the further prayer that the respondents be directed to implement the directions of the Hon'ble Supreme Court issued vide order dated July 30, 1999 and promote the petitioner to Junior Time Scale (in short JTS) grade of Indian Broadcasting Programmes Service (in short IBPS) against the vacancy of 1988-89 or 1989 w. e. f. June 91. Direction in regard to consequential promotion to Senior Time Scale (in short STS) grade of IBPS w. e. f. March, 1997, arrears of salary w. e. f. June, 1991 and compensatory costs has also been sought.
(2.) CONTEXTUAL facts depict that the petitioner was selected by the Union Public Service Commission (in short UPSC) for the post of Programme Executive (Hindi spoken word) and he was figured amongst the toppers in the batch of 1977. The petitioner joined his duties on Feb. 16, 1978 at All India Radio Jaipur. Prior to joining the AIR he had qualification of 2 Master Degrees i. e. Acharya (Ist Class) and M. A. in Philosophy (Ist Class first ). Additionally he had degree of Visharad in Hindi and had worked for more than 3 years for Ph. D. under Junior Research Fellowship awarded by UGC. The probationary period of the petitioner was also completed as usual. Thereafter he had been promoted on adhoc basis as Assistant Station Director (in short ASD) with effect from Jan. 13, 1999. The petitioner averred in the writ petition that he should have been promoted to the next post of ASD after qualifying service of five years but because of the respondents unusual activities, the turn of his promotion did not come till 1990. In the meantime the Government of India had approved the constitution of Indian Broadcasting Programme Service (IBPS) in January 1985, which was notified and implemented on November 5, 1990. This service has four cadres i. e. (1) Programme Management Cadre of All India Radio (2) Programme Production Cadre of All India Radio (3) Programme Management Cadre of Doordarshan and (4) Programme Production cadre of Doordarshan. The first grade of this service is Junior Time Scale corresponding to the post of Assistant Director in the pay scale of Rs. 2200-4000 now revised as Rs. 8000-13500 and the Feeder Cadre of the same is the post of Programme Executive / Producer. After the implementation of the IBPS, the first promotion made by the respondents was in June 91 (DPC held in May 91) in which 45 Programme Executives and 24 Producers were promoted as Assistant Station Director in JTS grade and they were subsequently appointed in the four cadres of IBPS. The case of the petitioner was however deliberately kept in sealed cover as revealed lateron on the basis of contemplation of disciplinary action, which was kept pending for about four years even without informing the petitioner. Thereafter also he was deprived of this promotion on false plea. As and when it was anticipated that the petitioner would be promoted in future, the sealed cover procedure was engineered, without chargesheeting him and his promotion was denied on the basis of the same. Further even after opening of the sealed cover he was not granted promotion, though he was found fit under the non-selection method. In June 1993 some more Programme Executive & Producers were promoted on adhoc basis to the JTS grade of IBPS and 168 Programme Executive and 146 Producers were regularised respectively in July 1994 and July 1995. In the meantime the petitioner was informed regarding the disciplinary action contemplated against him and closing of the same through simple warning vide letter dated November 12, 1993. The petitioner filed OA No. 344/95 before the Central Administrative Tribunal Jaipur Bench (in short CAT Jaipur) seeking his promotion to JTS grade with effect from June 1991 with consequential promotion to STS grade and arrears of salary along with other relief in the month of August 1995. The CAT Jaipur dismissed the said OA on July 31, 1996 holding that the method of promotion from June 91 onwards was selection (seniority cum merit ). The Ernakulam bench of Central Administrative Tribunal had however held on December 9, 1996 that the method of promotion was non selection (seniority cum fitness ). In the meantime the SLP filed by the petitioner before the Hon'ble Supreme Court being SLP No. 17189/96 was dismissed on September 16, 1996. The petitioner further averred that to avoid a conflict of law between the CAT Jaipur and CAT Ernakulam, a Full Bench of CAT was convened at Madras, which affirmed the finding of CAT Jaipur on June 3, 1997 and declared the law that the method of promotion to JTS grade of IBPS was selection. In the meantime the respondents had filed SLP before the Hon'ble Supreme Court and one Smt. Lata Raju had filed a writ petition before the Madras High Court and the writ petition was got transferred by the respondents form Madras High Court to Hon'ble Supreme Court and the same was registered as T. C. No. 8 of 1999. The petitioner also got himself made an intervenor in TC No. 8/99. Their Lordships of the Supreme Court vide order dated July 30, 1999 finally disposed of the case and observed as under: " The Karnataka Bench allowed the OAs following the decision of the Ernakulam Bench in OA No. 1046 of 1994 and 1069 of 1994 dated 9-12-96. It has been held that the 50% quote for promotion to the post of Junior time scale (for short JTS) in the Indian Broadcasting Programme Service (hereinafter called the IBPS) has to be filled not by selection but by `seniority'. On the other hand the Jaipur Bench in OA No. 344 of 1995 dated 31-7- 1996 has held that the promotion to the post of JTS is to be made by `selection'. The Full Bench of the Central Administrative Tribunal (Madras Bench) has accepted the view of Jaipur Bench that the 50% quota by promotion to the posts of JTS are to be filled by `selection' and not seniority. The Full Bench has not accepted the view of the Karnataka Bench and the Ernakulam Bench. " " The Full Bench at Madras and Jaipur Bench have relied upon the note 2 below Schedule IV and Schedule V to hold that even for JTS posts at serial No. 5, appointment is by `selection'. " ". . . . . . for appointment to posts in JTS at serial No. 6, no selection by assessment of comparative merit is contemplated either in the Rules or in Schedule IV or in Schedule V. " " Keeping in view the relevant Rules, we, thus, find that the view taken by the Ernakulam Bench is the correct view in the sense that the method of promotion to JTS posts is on the basis of promotion by seniority, subject to finding out the fitness of the candidate for the Programme Wing or Production Wing, through the DPC. The Karnataka Bench, therefore, rightly followed the Ernakulam Bench decision. We, therefore, do not see any reason to interfere in the two special leave petitions. As a consequence, the Full Bench view of the Madras Tribunal in Q. A. No. 1221 of 1994 can not be said to be laying down the correct view. " The petitioner pleaded that when the respondent did not implement the directions of the Supreme Court despite the representation submitted on August 9, 1999 followed by reminder, he initiated contempt proceedings which were registered as Contempt Petition No. 24/2000. The petitioner incorporated orders passed by the Supreme Court on various dates as under:- " May 5, 2000: " Mr. K. N. Raval, learned Additional Solicitor General submits that effective steps have been taken for convening of the DPC and the UPSC has been approached for the purpose, which has drawn up a schedule. We hope that the matter shall be resolved before we take up the matter on the next date and the party is able to avail of the benefit of the order of this Court. The learned Additional Solicitor General submits that as and when the decision is taken by the DPC, in case, the decision is in favour of the petitioner, he shall be given the benefit from the date from which he becomes entitled to it. List on 21. 08. 2000. " September 29, 2000 "union of India to produce relevant records for the purpose of verifying whether the DPC applied the principle of selection which had not been accepted by this Court in its judgment dated 30-7-1999 or it applied the principle of promotion accepted by this Court, so far as the petitioners are concerned. " The respondents filed affidavit on November 23, 2000 before the Supreme Court, wherein it was stated that the petitioner was considered again after the order dated 30-7-1999 for the promotion effective from June, 1993 (DPC held in July, 1994) but he was not found fit. As regards the promotion effective from June, 1991, the old rules were applicable and the same is not covered either by IBPS Rules or by the order dated 30-7-1999. Hon'ble Supreme Court thereafter on February 13, 2001 while dismissing the contempt petition, observed as under:- " In the first place, there is no mandatory order of this Court which the respondents can be said to have breached. The remedy of the contempt petition lies elsewhere, the contempt petition is dismissed. No order as to costs. " The petitioner after dismissal of contempt petition, filed writ petition under Article 32 of the Constitution before the Supreme Court, which was dismissed on August 13, 2001 with following observations:- " We do not think that this is a writ petition which should be entertained under Article 32 of the Constitution. Accordingly it is dismissed. If the petitioner so chooses, he may move the appropriate forum for relief. "
(3.) THE petitioner thereafter filed the O. A. before CAT Jaipur which was dismissed on April 9, 2002 on the ground that it was barred by limitation and suffered from constructive resjudicata. Against this finding of CAT Jaipur that the action for filing the instant writ petition has been resorted to by the petitioner. The respondents submitted reply to the writ petition raising preliminary objection about its maintainability. It is averred in the reply that the petitioner was duly considered for promotion by the review DPC held pursuant to the order dated July 30, 1999 but was not found fit. In regard to sealed cover procedure it is pleaded that the said procedure was adopted as per the rules and regulations. According to the respondents the promotion made in 1991 related to the vacancies occurred prior to IBPS Rules came into force and they were governed by the old rules and not effected by the order dated July 30, 1999 of the Supreme Court. Supporting the impugned order of CAT Jaipur the respondents pleaded that it is a well reasoned order. The petitioner filed rejoinder to the reply and emphasised that after the order dated July 30, 1999 of the Supreme Court, the new cause of action arose, the respondents made promise to consider the case of the petitioner but they considered it w. e. f. June 1993 and not w. e. f. June, 1991. The petitioner again averred that as intimation of the orders of review DPC was communicated to the petitioner vide letter dated September 25, 2000, the filing of O. A. by the petitioner before the CAT Jaipur on August 21, 2001 was within limitation of one year prescribed by the Administrative Tribunal Act. ;